An insider's view of what is really happening in the Harris County Criminal Courts

Friday, October 21, 2011

Pat Lykos' Star Chamber Rebels

On Wednesday, October 19th, the 14th Court of Appeals denied a Motion that Harris County District Attorney Pat Lykos hopes to God that you don't pay attention to. However, if you simply must look at it, I suppose you can get to the decision by clicking here.

The case is styled "In Re the State of Texas, Ex Rel. Patricia R. Lykos v. Hon. Susan Brown, Presiding Judge, 185th District Court of Texas" and is filed as "Request for Emergency Stay of Grand Jury Proceedings."

Sound interesting? Well, it is. Very interesting.

By reading the District Attorney's Office "request" and the supporting memorandums of HCDA General Counsel John Barnhill and Grand Jury Division Chief Carl Hobbs, a very clear picture of Lykos' attempt to extract vengeance against Amanda Culbertson emerges.

First, a little background. As I talked about in this post earlier this month, the District Attorney's Office is very very upset with former-HPD technical supervisor, Amanda Culbertson. Ms. Culbertson used to be in charge of making sure that the Intoxilyzers over at HPD were all in credible, working order.

We don't want an Intoxilyzer showing your breath test results as a .14 when really you were a .07, do we?

Ms. Culbertson had some issues with the HPD Mobile "B.A.T." vans that had portable Intoxilyzers in them. She thought the conditions the B.A.T. van Intoxilyzers were being stored in could affect their reliability. She told her supervisors. Her supervisors didn't care. She quit HPD and went to work for Lone Star College, doing the same technical supervising, but now for County Law Enforcement Agencies. Culbertson let people know that she left HPD because of her issues with the B.A.T. vans, and that put all of the District Attorney's DWI cases that involved those vans in serious jeopardy.

That made Pat Lykos angry. She got the Commissioners Court to cancel the contract with Lone Star College so that the District Attorney's Office would never ever ever have to deal with that damn Amanda Culbertson again.

Did that satisfy Pat Lykos? Nope. She wants Amanda Culbertson indicted, too. Amanda seems to have pissed off Lykos in a way that even I have failed to do in my three and a half years of blogging!

Which brings us to the 14th Court of Appeals filing.

Lykos is having her prosecutors present a case to the Grand Jury involving the B.A.T. vans and Amanda Culbertson. That Grand Jury was created by the 185th District Court, Judge Susan Brown presiding. Grand Jury proceedings are secret, so we don't know what exactly has been presented to the Grand Jury so far.

But on October 18th, the Harris County District Attorney's Office vendetta against Amanda Culbertson blew up in their face.

On that day, prosecutors Carl Hobbs, Steve Morris (from Governmental Integrity), and John Barnhill all marched down to the 185th Grand Jury with the intent of calling defense attorney (and former-prosecutor) Brent Mayr as a witness before the grand jurors. Brent Mayr, if you will recall from my earlier post, is the attorney who filed a Writ against the D.A.'s Office for withholding evidence of B.A.T. van reliability issues.

Upon arrival at the Grand Jury, however, Hobbs, Morris, and Barnhill were suddenly informed by the Grand Jury bailiffs that the Grand Jurors wanted them (the prosecutors) excluded from the room while Mayr was testifying.

In legal terms, the proper response to this is "Holy Catfish, Batman."

Prosecutors are always in the room with Grand Jurors when they are interviewing witnesses. The only part they are excluded from in a Grand Jury is when the grand jurors deliberate. The Grand Jurors excluding the prosecutors from the testimony is kind of the equivalent of the President being booted out of a Cabinet meeting. It just doesn't happen. I mean, ever.

Hobbs, Morris and Barnhill were incensed, obviously. Hobbs and Barnhill quickly gathered up 1st Assistant Jim Leitner and stormed up to Judge Susan Brown's court to demand that she order the Grand Jury to let them back into the room while Mayr testified.

Judge Brown politely declined to order the Grand Jury to do anything. Thus, the Motion (or Request) to the 14th Court of Appeals that would make the Court of Appeals order Judge Brown to order the Grand Jurors to let the prosecutors in the room.

To realize that significance of this, you have to read between the lines (but just a little bit).

The 185th Grand Jury has quite apparently decided that the Harris County District Attorney's Office's involvement into the crucifixion of Amanda Culbertson B.A.T. Van investigation is suspect, if not entirely improper. They don't want them in the room while hearing from witnesses.

And that has got Hobbs, Barnhill, Leitner, and Pat Lykos scared. Really scared. So scared that they are scrambling very quickly to Judge Brown or the 14th Court of Appeals to demand that they get to jump in and stop whatever is going on. Seriously. Go read Barnhill and Hobbs' memorandums to the 14th Court of Appeals.

From Barnhill's:

Just prior to being escorted out of the grand jury room by the bailiff, I observed the bailiff in her office and overheard the bailiff speaking in a telephone conversation. The bailiff said to the person on the phone, "They told me to arrest the DAs." From that, I assumed that the grand jury had instructed the bailiffs to arrest Mr. Hobbs, Mr. Morris and me if we remained in the grand jury room while the grand jury was attempting to question the witness.

The implication being that the 185th Grand Jury may have started their own investigation, and it ain't into Amanda Culbertson.

It may just be into Pat Lykos and the Harris County District Attorney's Office.

Remember back in that last post when I said this may just be the tip of the iceberg?

I hate to say "I told you so," but . . . Wait, no I don't. I told you so.

Watch for this story to get a lot bigger in the days to come.

UPDATE: Ted Oberg did a great piece on the Grand Jury Scandal. Check it out by clicking here.

Sounds like the DA's office is going to want an amendment to the code of criminal procedure to make the grand jury procedure/indictment procedure the same as the feds. That is, an indictment isn't an indictment until it's signed by the foreman of the grand jury AND an attorney for the government.

Judge Brown is a tool bag, by the way, but McCally is a sharp lady. Their opinion is basically a punt. They aren't stopping anything until someone shows authority. Brown's nose is in the back side of the Republican party, so he'll end up helping Lykos more than you want, I'm guessing.

I don't know that third judge on the panel, but your criminal issues will be decided by at least two civil judges.

Heard a slightly different version earlier this morning. Please Please Please mainstream media---pick this up! This is a big deal: abuse of power, vindictive elected official, CYA activity that the voters need to know! The State Bar ought to take a look as well---serious ethical questions here.

I remember when former Houston Chronicle Op-Ed writer Rick Casey wrote an article awhile back with a title something like, "My Fantasy: Kelly Siegler Special Prosecutor to Go After Crooked DA in XYZ County".

Well wouldn't it be poetic justice if XYZ County became Harris County?

This is a Classic Lykos-style vendetta that has apparently seen the light of day. Most of her sleaziness is carefully hidden behind closed doors or the smoky haze in the staff parking garage where she goes on numerous smoke breaks during the day. I suspect Lykos has mistakenly assumed she is untouchable after 3 1/2 in office. Hopefully she has finally stepped on her manhood big-time and the voters will realize what a poor excuse for a DA she really is.

Hey Lance,How are you, Rachael and Jimbo dealing with the prospect of what goes around comes around?Hey Pat,Check out CNN--Khadafi-style leadership is high risk behavior.Hey Murray,The DAs office owes you a debt of gratitudeHey Magidson,Hope you still read this blog and are ready to rollHey Houston Chronicle,Murray's got more balls and integrity than your whole fucking staffHey ADAs,The Wicked Witch is dead 2012 will be a celebrationHey Rage,You're invited to the Pat Lykos indictment party--we need a pinata.

There is a vote of confidence being floated around by current prosecutors, law enforcement, and former prosecutors. If you have not received it just ask a friend. The results are overwhelming. This vote will be published within the next week. The commisioners court can't ignore what they are going to see. Lykos will be stepping down by November 12. The republican party can't withstand another disaster pre election. The most interesting results are from the law enforcement.

Wayne at channel 13 has been watching some of the assistants taking off work early when they should be working. The drug court expenses are being looked at. Why is a civil judge sitting in a criminal court? wayne thinks the taxpayers need to know about this.Stay Tuned----Thanks Murray for your blog.

Without getting into the merits of the underlying investigation, whether prompted by less than honorable intentions towards a particular company or employee and any charged retaliation, the following provision from the CCP seems to indicate the State is entitled to be present at all proceedings excepting grand jury deliberation and voting.

Art. 20.03. ATTORNEY REPRESENTING STATE ENTITLED TO APPEAR. "The attorney representing the State" means the Attorney General, district attorney, criminal district attorney, or county attorney. The attorney representing the State, is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing the propriety of finding an indictment or voting upon the same.

It will be interesting from an academic standpoint, (as a non-Harris county resident), if the State elects to pursue the issue beyond the Court of Appeals ruling.

With a great deal of trepidation I feel compelled to respond to this blog in the light of the fact that I have such a great deal of respect for Alan Curry, Carl Hobbs, and Eric Kugler, and particularly Michele Hartmann. However, I believe that the 14th Court of Appeals was correct in its ruling at this juncture for reasons that I will not set out herein because I have no desire to educate or for the current District Attorney to prevail on an issue that appears once again odoiferous - thank you again you ignorant blue hairs. I do not believe that 20.03, C.C.P. is a mandatory statute, however - it does not say "shall be entitled to appear" nor "may be entitled to appear". "Entitled to appear" therefore appears to be discretionary language for the purposes limited by the statute until the CCA says otherwise. I will leave that thought with those more interested with the issue than I.Calvin A. Hartmann

The Wicked Witch of the West will be making her maiden voyage on Monday, October 31, 2011. Please clear all air space and look up into the sky to see the witch on her broom make her way into the lobby of the Harris County Criminal Justice Cener.

What I find interesting is that Patsy would send her minions and not take control of the situation herself. Typical persona of a tyrant. Send your soldiers to collect the punishment.

What I find hilarious is the visual had Patsy marched up in front of Susan Brown or the 14th to argue the issue on her own. Could she have? There is something to be said about true leadership exhibited by the supposed top county law enforcement official.

Regardless of your personal beliefs about the previous elected/acting DAs, one thing is for sure. They would have led from the front on this and any other issue.

Yes Michelle Hartmann, but what if the Grand Jury is conducting it's own investigation which they may do under the CCP? Grand Juries have barred Harris County prosecutors before when they were conducting an independent investigation. The sitting DA at the time knew that was the right of the Grand Jury. That D.A.'s name was John B. Holmes, Jr. Unfortunately there is no one left on Team Lykos who possesses the institutional knowledge to have spared the office from this unwanted publicity. Hey Jim, hope Michelle still has some office space for you. Even if Lykos gets re-elected, which she probably will, there will be a lot of exit strategies put into play beginning 1-1-2013.

The stage is set for you to run Murray. You left, well, got fired twice, for speaking out in advance that Pat Lykos was a "troll" who could not run the office. For the most part, you have consistently blogged about that for the last three or so years. Now, as the office falls apart, you get to say "I told you so," which also leads credence to the idea that you know how to do it correctly. Because you have also been on the defense side, you have the other perspective, more broad than most preceding DAs. So, go for it, I think you would be passionate, yet reasonable (not something I would say about KS). Besides, you know you still want to be a prosecutor. (Go ahead, protest now! But think about it . . . .)

To all those on the 6th floor who read this blog, let me assure you that this story is spreading through the office like a wildfire. This is Pat Lykos' "kiss you behind the ear" moment. 6th floor: you (and by that I mean the DA herself, not through bureau chiefs or a memo from Jim) need to address the troops on this on Monday as to exactly what happened with that contract and why it was done. You campaigned on integrity and transparency. Display some please.

"...I think you would be passionate, yet reasonable (not something I would say about KS)."

Ask former death row inmate Anthony Graves about whether or not "KS" is passionate and reasonable. It's not just law enforcement that recognizes Kelly Seigler's incredible ability as a real prosecutor.

There are unfortunately too many people these days who choose to make excuses instead of improvements at the work place. The excuse makers feel better when they fault the meritorious achievement of others knowing they are personally incapable or unwilling to achieve the same standard.

Kelly Seigler will run and win in 2012 and you can pack Jimmy's bags after you clear out your desk.

First - I'm retired from HCSO and am now practicing criminal defense. I was trained and licensed as an Intoxilyzer Operator in 1989, and after making Lieutenant, I commanded the Sheriff's Traffic Enforcement Division from 1997-2004. The folks in Vehicle Crimes know me.

That said, during the approximately 20 years that North Harris, now Lone Star College, had the contract, I never knew of a single problem with them. I never heard a single complaint from the District Attorney's Office about any technical supervisor. In fact, the opposite was true. The College would bend over backwards to work with us. Whether scheduling classes for new operators, responding promptly to fix any problems with an instrument, or helping us with supplies, etc., they were always there for us. I know I've been away from Traffic for 7 years, but I keep my ear to the ground. Nothing had changed....

In the October 2, 2011 Chronicle, both HCSO spokesman Alan Bernstein and the County Judge's aide Doug Adkinson made it clear the District Attorney's office was behind the push to eliminate the contract with Lone Star. If I was the Grand Jury, I would subpoena both of them to the Grand Jury and have them explain what information from the District Attorney those comments were based on. I would also subpoena HCSO personnel in the Traffic chain of command, from Major Van Pelt down to the line supervisors, the people most familiar with Lone Star, and ask them about complaints.

I would also subpoena Vicki Amszi and ask her if she was ever advised of any problems or complaints before learning the contract was about to be cancelled.

The Grand Jury should also subpoena all the Brady disclosures that were made by the District Attorney's Office that related to the problems with the breath testing program. If there are no Brady disclosures, then someone either breached an ethical duty as a prosecutor or fabricated a complaint in retaliation.

People make errors when they overreach. They got away with getting Amanda fired. Somebody should have had the sense to stop at that point instead of giving in to a subordinate’s desire for revenge.

The irony of this whole fiasco is that the two most vindictive ones were behind this. Rachel Palmer and Pat Lykos created this. This is what happens when you let people lead who are not leaders. Rachel has no real experience and should not have been handling this situation. John Jordan is involved in this too but he has become so cowardly that he is nowhere to be found. Those of us at the office knew this would turn bad because both Rachel and Pat have the same issue.

If they perceive a situation to be a personal affront to their "power" they can't help but retaliate rather than use reason. Amanda pissed Rachel off and thus pissed Pat off. Pat listens to Rachel (chuckle) and look where they are. Watching Rachel try and deal with Brent Mayr was embarassing for the office.

The fact is, as long as Pat (I refuse to call her Judge) listens to people like Jim, Rachel, Joni, Roger and now I guess Lance, issues like this will continue to happen.

On a side note, we started to count the number of people who have been up to Jim's office when he is "exacting discipline" and Jim tells each of them that "this wasn't my idea". If Jim thinks he can run have the support of the office he is sorely mistaken.

Narcissists have "the need for revenge, for righting a wrong, for undoing a hurt by whatever means" and thus, Lykos and Palmer were unable to stop themselves.

I don’t believe Lykos will resign – but will fire someone to deflect the attention away from herself. If Lykos moves quickly she can go to the press and claim that she successfully cleaned the scum from the office. The next two weeks will be VERY interesting. If Lykos has any hope of surviving, I think that Palmer has to be her "fall" gal.

Are you trying to infer that Roger Bridgwater does NOTHING all day except work on his Judicial Campaign?? He's just trying to increase his chances of having a job come Jan of 2013... It says a lot when one of Lykos' hand-picked Bureau Chiefs sees the handwriting on the wall.

While Mayr is a D-bag of the first degree, he knows what he's talking about. RB, RP, LL, JJ, and all of "Team Lykos", you have met your match. Instead of covering your own tail and instead of covering for PL, you should have simply done what a prosecutor is supposed to do: justice. You have all now produced the biggest "damn fool result" imaginable and for what? Pat Lykos? Seriously?

If you want to post a comment complaining about something or the way somebody does their job, then you are free to do it here. I may or may not agree with you, but I'm not going to edit you even if I disagree.

However, there are some folks that are inclined to make some sort of B.S. cryptic comments that delve into folks' personal lives. I'm not publishing it here. I don't care if you are writing about somebody that I like personally, or that I detest.

Hartmann, an entitlement is an entitlement. Period. It is not discretionary, despite the absence of the words "shall be." Therefore, it appears that if someone "is" entitled to something, your real issue is with the definition of the word "is".

I find that incredibly ironic.

I hope that your secret reasons for agreeing with the COA are better than you public reasons.

I hope this is the smoking gun so many have wanted. God bless that grand jury! May they find the truth that the DA's office and HPD have tried so hard to hide. Shame, shame, shame on all who are involved in this. May your shame be publicly displayed for all to see.

The statute says the attorney representing the State is entitled to appear before the grand jury "and inform them of offenses liable to indictment". That is all. It does not say they are entitled to be in the room when the grand jury is questioning witnesses. There are numerous cases that establish conclusively that the grand jury is an independent body and may conduct its own investigations. If the grand jury is empowered to investigate the district attorney's office - and it is - then it makes no sense to interpret the statute to mean that a prosecutor from that office must be present. I don't believe that there is a case that says that a prosecutor has a right to be present in the grand jury room over the objection of the grand jury. Except now.

About Me

I'm a Criminal Defense Attorney and a former Harris County prosecutor. I've been involved in Criminal Law since I was in college, and I've been practicing in Houston for over 15 years.
Most people never have to come down to the Harris County Criminal Justice Center unless they have jury duty. This blog is meant to give the Outsider an inside view.
These are just my opinions. The opinions of the Commenters are also just their opinions and I don't endorse them. But (within reason), I want everybody to be able to have a forum to say what they want to say.